Manual of Procedure in Disciplinary Actions

New York State Department of Civil Service

Committed to Innovation, Quality and Excellence

Manual of Procedure in Disciplinary Actions

Andrew M. Cuomo Governor

Disclaimer

This manual is intended to be used as a practical and informative guide only and is not to be used as legal authority for any purpose. Specific legal authority comes exclusively from statute and case law and we reserve the right to revise, modify or alter the contents of this manual at any time.

Copyright ? 2003 by the New York State Department of Civil Service

Manual of Procedure in Disciplinary Actions

TABLE OF CONTENTS

Section Page

PREFACE

I

1

PURPOSE OF MANUAL

II

2

STATUTORY OVERVIEW

III

3

OFFICERS AND EMPLOYEES COVERED BY SECTION 75

IV

5

General Temporary, Provisional, Part-time or Per Diem Employees Probation Private Secretary, Cashier, Deputy Independent Officers Notice of Status as War Veteran or Exempt Volunteer Firefighter

PROCEDURE BEFORE DISCIPLINARY ACTION IS TAKEN

V

11

Fair Play-Due Process General Policies Records Showing Incompetency or Misconduct E-Mail Conferences and Counseling Assignment to Other Locations/Duties Investigation Representation During Investigation Criminal Acts or Omissions Medical Examination

OFFENSES SUBJECT TO DISCIPLINARY ACTION

VI

22

Time Limitations Offense Must Be Substantial Effect of Layoff "Outside" or "Off Duty" Offenses Indictment and Conviction on Criminal Charges Retaliatory Action

PREPARATION OF CHARGES

VII

26

Form Charge Specifications Related Matters

SUSPENSION

VIII

32

TRANSMITTAL OF NOTICE AND STATEMENT OF CHARGES

THE ANSWER

EFFECT OF RESIGNATION

DESIGNATION OF HEARING OFFICER

SUBPOENAS

General Who May Issue Subpoenas Obtaining a Subpoena Service Fees

COUNSEL AND REPRESENTATION

HEARING

General Open or Closed Hearing Adjournments Relationship Between Hearing Officer and Employee Failure or Refusal to Appeal Hearing Procedures/Evidence Stenographic Record/Exhibits

SETTLEMENT

THE DETERMINATION

General Evaluation of the Evidence Reinstatement If Found Not Guilty Penalties Notice of Determination Other Procedural Requirements Effects of Penalties Suspension or Fine of Overtime Ineligible Employees

APPEALS TO CIVIL SERVICE COMMISSION OR PERSONNEL OFFICER

Procedure on Appeal Determination on Appeal

CONCLUSIONS

APPENDIX

IX

34

X

36

XI

38

XII

39

XIII

41

XIV

44

XV

45

XVI

50

XVII

51

XVIII

59

XIX

63

Section I Preface

When public sector employees are incompetent at work or engage in misconduct relating to the performance of their duties, employers may seek to discipline those employees, either to correct their behavior or to remove them from the workforce. Employers, however, are bound by specific laws and court decisions that relate to the procedural and substantive requirements to effect discharge or other disciplinary penalties.

Although there is increased public and judicial scrutiny in this area, the notion that public employees may be disciplined or separated from public service only under the most extreme circumstances, and solely for the gravest offenses, is utterly untrue. The same reasons which are generally acceptable for disciplining employees in private industry may be the basis for discipline in the public service ? although in public service specific due process procedures must be followed and the employer's actions are subject to broader review.

We have prepared this manual to aid administrative officials in becoming more familiar with the formalities required to meet current legislative and judicial standards. Since the last revision of this manual in 1987, there have been many changes and additions that are now reflected in this edition.

We have also included some recommendations relating to personnel practices that have a bearing on disciplinary procedures, and also some suggestions on how to make the disciplinary process more fair, efficient and manageable.

This 2003 revised edition of the Manual of Procedure in Disciplinary Actions pursuant to the Civil Service Law was prepared by the Law Bureau of the Department of Civil Service.

1

Section II

PURPOSE OF MANUAL

Generally, disciplinary proceedings involving civil service employees are governed by the provisions of sections 75, 75-b, 76 and 77 of the Civil Service Law and/or the negotiated agreements between the various bargaining units and each public employer.

Each statute and/or negotiated agreement provides for or relates to the procedures to be followed during the various stages of a disciplinary proceeding. Though variance from some of these procedures may have little practical effect on the proceeding or may be easily remedied, other failures to follow established procedures may profoundly affect the course and outcome of the action or may even be fatal to the charges at any stage of the proceeding, or upon appeal and review. The importance of following proper procedures, therefore, cannot be over emphasized.

This manual is designed primarily to serve as a guide to the procedures that should be followed in disciplinary actions and to illustrate such procedures by appropriate examples. While the focus of the manual is on those procedures set forth in the Civil Service Law, references will be made regarding the procedures applicable to arbitration proceedings under the terms of negotiated agreements. Inasmuch as disciplinary proceedings require the conduct of formal hearings and involve legal issues, the advice and guidance of appropriate government counsel may be necessary at any stage of the proceeding. This manual, which is intended to be a valuable resource, is not a substitute for sound legal advice from counsel.

2

Section III STATUTORY OVERVIEW

Civil Service Law section 75 provides that a covered employee may not be removed or otherwise subjected to disciplinary penalty except for incompetency or misconduct shown after a hearing on stated charges. Such employee is entitled to representation and to summon witnesses to testify on her or his behalf at the hearing. Upon service of the charges, the appointing officer or authority may suspend the employee without pay for a period of up to thirty days pending the hearing and determination of the disciplinary charges. The burden of proving the facts upon which the charges are based and the appropriateness of the proposed penalty is on the employer.

If the employee is acquitted of the charges, she or he is restored any salary and benefits lost as a result of the employer bringing those charges. If the employee is found guilty of any charges, she or he may receive a penalty ranging from a formal letter of reprimand to a fine, a temporary suspension, demotion or dismissal from service.

Civil Service Law section 75-b, commonly known as the "whistleblower law," prohibits a public employer from taking disciplinary action against a public employee because that employee reveals information to a governmental body regarding a violation of a law, rule or regulation which presents a substantial and specific danger to public health and safety or reveals information which the employer reasonably believes is true and constitutes an improper governmental action.

When the employee reasonably believes that a disciplinary action would not have been taken but for the protected activity, section 75-b may be raised as a defense in that proceeding. Once raised, the defense must be considered and determined as part of the hearing officer's decision.

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